Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Kandace D.

Court of Appeals of Tennessee, Knoxville

January 8, 2018

IN RE KANDACE D.

          Assigned on Briefs October 2, 2017

         Appeal from the Circuit Court for Bradley County No. V-15-869 Lawrence Howard Puckett, Judge

         This appeal involves the termination of a father's parental rights to his minor child. The child's physical custodians petitioned to terminate the father's parental rights. The trial court found that the petitioners had established, by clear-and-convincing evidence, three grounds for termination: (1) abandonment by an incarcerated parent, with the parent having exhibited a wanton disregard for the welfare of the child prior to his incarceration; (2) incarceration with a child under age eight and a prison sentence of ten years or more; and (3) persistence of the conditions that led to the child's removal from the father's home. The trial court also determined that termination of the father's parental rights is in the child's best interest. The father appeals the three grounds for termination found by the trial court. The father also appeals the trial court's finding that termination of his parental rights is in the child's best interest. We reverse as to the ground of persistence of conditions, but affirm termination of the father's rights on both other grounds. We also affirm the trial court's conclusion that termination of the father's parental rights is in the child's best interest.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed in Part, Affirmed in Part and Remanded

          Wilton Marble, Cleveland, Tennessee, for the appellant, Zachary D.

          David K. Calfee, Cleveland, Tennessee, for the appellees, Jason M. and Earon M.

          Herbert H. Slattery, III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor General and W. Derek Green, Assistant Attorney General, for the intervenor-appellee, State of Tennessee.

          Arnold B. Goldin, J., delivered the opinion of the court, in which Frank G. Clement, Jr., P.J., M.S., and John W. McClarty, J., joined.

          OPINION

          ARNOLD B. GOLDIN, JUDGE.

         BACKGROUND AND PROCEDURAL HISTORY

         Beth D. ("Mother") and Zachary D. ("Father, " or "Appellant") are the biological parents of one minor child, Kandace D. (d.o.b. June 2013) ("the Child").[1] Father appeals the termination of his parental rights to the Child.[2]

         On June 6, 2014, the Department of Children's Services ("DCS") received a referral alleging that the Child was being subjected to nutritional and environmental neglect. Based upon the referral, Jillian Shaw, a DCS investigator, visited the home of Mother and Father. Father was not present, but Mother invited Ms. Shaw into the residence. Ms. Shaw later testified that she observed the home to be covered with laundry, trash, bugs, and what appeared to be dog urine. After photographing Father's residence, Ms. Shaw learned that the Child had been living with David W. and Marie W., the next-door neighbors (together, the "W.'s"), for approximately one month. Ms. Shaw visited the W.'s home, and observed that the Child was small for her age, and she was showing visible signs of malnourishment, including budding breasts and a protruding stomach. After speaking with the W.'s and observing the Child, Ms. Shaw determined that it was necessary to move forward with the DCS investigation. Accordingly, Ms. Shaw arranged for Marie W. and Mother to bring the Child to the hospital emergency room on the next day. The Child was released from the hospital after a one-night stay with instructions to follow up with her regular doctor. After an appointment with her regular doctor, the Child was admitted to the hospital for a second stay. The Child spent four nights during this second visit; Marie W. testified that neither Father nor Mother visited the Child during her four-night hospital stay.

         On June 10, 2014, DCS filed a Petition in Juvenile Court to Transfer Temporary Legal Custody to the Neighbors and for an Ex Parte Order, asking the trial court to find the Child dependent and neglected and to award temporary legal custody to the W.'s. On June 10, 2014, the trial court entered a protective custody order awarding emergency custody to the W.'s. At the preliminary hearing on June 17, 2014, both parents consented to the transfer of temporary legal custody of the Child to the W.'s. The trial court then entered an Adjudicatory Order on June 19, 2014, finding that the Child was dependent and neglected, and awarding the W.'s temporary legal custody. On October 31, 2014, Father pled guilty to a multitude of felonies, and he was sentenced to serve ten years in the Tennessee Department of Corrections.

         Sometime later, the W.'s gave physical custody of the Child to Earon M. and Jason M., the petitioners in this case.[3] On December 7, 2015, Earon M. and her husband Jason M., filed a petition to terminate Father's parental rights and for the adoption of the Child. The petition alleged that Father had been in-and-out of prison over the course of the Child's life, that he was currently incarcerated with a prison sentence of ten years, and that termination of his parental rights was in the best interest of the Child. Specifically, the petition averred that Father was incarcerated from May 7, 2014 through May 18, 2014, and from September 29, 2014 through August 26, 2016. The petitioners also averred that the Child had been living with them for several months, and that they had a strong bond with the Child. The petition also alleged that Mother was prepared to voluntarily surrender her parental rights, and a "Waiver of Interest and Notice" signed by Mother was also filed with the petition.

         On February 17, 2016, the trial court awarded legal custody to Earon M. and Jason M. On October 31, 2016, Father filed a "Motion for Visitation/ Return Custody, " which petitioners opposed. Father's motion was denied. On February 15, 2017, petitioners filed an amended petition to terminate Father's parental rights and for the adoption of the Child. The amended petition averred that Father's rights should be terminated on the following grounds: incarceration with a sentence of ten years or more and a child under eight years of age at the time the sentence is entered by the court; abandonment by willful failure to visit or support; incarceration at the time of the filing of the original petition and willful failure to visit or support during the four months preceding incarceration; incarceration at the time of the filing of the original petition with Father having engaged in conduct prior to incarceration that exhibited a wanton disregard for the welfare of the Child; severe abuse; and because the Child had been removed from the Father's home for six months by the order of a court and the conditions leading to her removal or other conditions that in all probability would cause the Child to be subjected to further abuse or neglect still persisted and were unlikely to be remedied (commonly referred to as "persistence of conditions").[4]

         On March 30, 2017, a hearing was held on the petition to terminate Father's parental rights. Mother, Father, Marie W., David W., Ms. Shaw, and Earon M. testified. By order of April 25, 2017, the trial court terminated Father's parental rights on the following grounds: (1) abandonment by an incarcerated parent with the parent having exhibited behavior demonstrating a wanton disregard for the welfare of the Child, prior to his incarceration; (2) Father's sentence to serve ten years in a correctional facility which was imposed when the Child was under the age of eight;[5] and (3) persistence of the conditions that led to the Child's removal. The trial court also found by clear-and-convincing evidence that termination of Father's parental rights was in the Child's best interest. Father timely appealed.

         ISSUES

         Father has presented several issues for our review, which we restate as six issues, as follows:

1. Whether the trial court erred in terminating Father's parental rights on the ground of abandonment by incarceration, and upon a showing of evidence that Father exhibited a wanton disregard for the welfare of the Child prior to his incarceration.
2. Whether the trial court erred in terminating Father's parental rights on the basis of Tennessee Code Annotated Section 36-1-113(g)(6).
3. Whether the trial court erred in terminating Father's parental rights on the ground of persistence of conditions.
4. Whether the trial court erred in holding that termination of Father's parental rights is in the best interest of the Child.
5. Whether Tennessee Code Annotated Section 36-1-113(g)(6) is constitutional, as-applied to Father.
6. Whether the trial court committed reversible error by permitting Ms. Shaw to testify, admitting documents from the dependency and neglect proceedings, and admitting alleged hearsay from the Child's medical records.

         STANDARD OF REVIEW

         Under both the United States and Tennessee Constitutions, a parent has a fundamental right to the care, custody, and control of his or her child. Stanley v. Illinois, 405 U.S. 645, 651 (1972); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174 (Tenn. 1996). While this right is fundamental, it is not absolute, and the right "continues without interruption only as long as a parent has not relinquished it, abandoned it, or engaged in conduct requiring its limitation or termination." See In re Marr, 194 S.W.3d 490, 495 (Tenn. Ct. App. 2005) (citation omitted). The state may interfere with parental rights only when a compelling interest exists. Nash-Putnam, 921 S.W.2d at 174-75 (citing Santosky v. Kramer, 455 U.S. 745 (1982)). Our termination statutes identify "those situations in which the state's interest in the welfare of a child justifies interference with a parent's constitutional rights by setting forth grounds on which termination proceedings can be brought." In re W.B., No. M2004-00999-COA-R3-PT, M2004-01572-COA-R3-PT, 2005 WL 1021618, at *7 (Tenn. Ct. App. Apr. 29, 2005) (citing Tenn. Code Ann. § 36-1-113(g)). A party seeking termination of a parent's rights to his or her child must prove both the existence of at least one of the statutory grounds for termination and that termination is in the child's best interest. Tenn. Code Ann. § 36-1-113(c); In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).

         Because of the gravity of the consequences in termination of parental rights cases, Tennessee courts impose a heightened standard of proof-clear-and-convincing evidence-for the parent's benefit. See Tenn. Code Ann. § 36-1-113(c)(1); In re Carrington H., 483 S.W.3d 507, 522 (Tenn. 2016). The clear-and-convincing-evidence standard ensures that the facts supporting the statutory grounds for parental rights termination are highly probable. In re Carrington, 483 S.W.3d at 522. Such evidence "produces in a fact-finder's mind a firm belief or conviction regarding the truth of the facts sought to be established." In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004).

         The heightened burden of proof applies to both the initial determination of whether statutory grounds for termination have been established and whether termination is in the best interest of the child. Id. First, the petitioner must establish, by clear-and-convincing evidence, at least one of the statutory grounds for termination of the parent's rights. See Tenn. Code Ann. § 36-1-113(c)(1); In re Angela E., 303 S.W.3d 240, 251 (Tenn. 2010). Second, the petitioner must prove, by clear-and-convincing evidence, that termination of the parent's rights is in the child's best interest. Tenn. Code Ann. § 36-1-113(c)(2); In re Carrington, 483 S.W.3d at 523 ("The best interests analysis is separate from and subsequent to the determination that there is clear-and-convincing evidence of grounds for termination.") "These requirements ensure that each parent receives the constitutionally required 'individualized determination that a parent is either unfit or will cause substantial harm to his or her child before the fundamental right to the care and custody of the child can be taken away.'" See In re Carrington, 483 S.W.3d at 523 (quoting In re Swanson, 2 S.W.3d 180, 188 (Tenn. 1999)).

         In light of the heightened standard of proof in termination of parental rights cases, a reviewing court must also modify the customary standard of review in Tennessee Rule of Appellate Procedure 13(d). On appeal, we review the trial court's findings of fact "de novo on the record, with a presumption of correctness of the findings, unless the preponderance of the evidence is otherwise." In re Taylor B.W., 397 S.W.3d 105, 112 (Tenn. 2013); Tenn. R. App. P. 13(d). We must then make our "own determination regarding whether the facts, either as found by the trial court or as supported by a preponderance of the evidence, provide clear-and-convincing evidence that supports all the elements of the termination claim." In re Bernard T., 319 S.W.3d 586, 596-97 (Tenn. 2010). We review the trial court's conclusions of law de novo with no presumption of correctness. In re J.C.D., 254 S.W.3d 432, 439 (Tenn. Ct. App. 2007).

         DISCUSSION

         I. TERMINATION OF PARENTAL RIGHTS

         The trial court relied on the following statutory grounds in terminating Father's parental rights: (1) abandonment by incarceration, with Father having exhibited a wanton disregard for the Child's well-being prior to his incarceration; (2) Father's confinement to a correctional facility under a sentence of ten years when the Child was approximately one year old; and (3) persistence of the conditions that led to the Child's removal. Although only one ground must be proven by clear-and-convincing evidence in order to terminate a parent's rights, the Tennessee Supreme Court has instructed this Court to conduct our own review to determine whether clear-and-convincing evidence supports each ground relied upon by the trial court. See In re Carrington, 483 S.W.3d at 523; In re M.L.P., 228 S.W.3d 139, 144 (Tenn. Ct. App. 2007) ("As long as one statutory ground for termination is established by the facts in [the] case and termination is in the best interest of the [child], the trial court's decision will be sufficiently supported.") Accordingly, we will review all three of the foregoing grounds relied upon by the trial court to determine if at least one statutory ground is established, and if so, whether clear-and-convincing evidence supports termination of Father's parental rights.

         A. Grounds for Termination

         1. Abandonment by Incarceration: Tennessee Code Annotated Section 36-1-102(1)(A)(iv)

         We first turn to review the trial court's determination that Father abandoned the Child by engaging in conduct prior to his incarceration that exhibited a wanton disregard for the Child's welfare. The termination of a parent's rights to his or her child may be initiated as a result of the parent's abandonment of the child. Tenn. Code Ann. § 36-1-113(g)(1). "Abandonment" occurs when a parent is incarcerated at the time a petition to terminate his or her parental rights is filed, and the parent has "engaged in conduct prior to incarceration that exhibits a wanton disregard for the welfare of the child."[6] Tenn. Code Ann. § 36-1-102(1)(A). "We have previously held that probation violations, repeated incarceration, criminal behavior, substance abuse, and the failure to provide adequate support or supervision for a child can, alone or in combination, constitute conduct that exhibits a wanton disregard for the welfare of a child." In re C.T.S., 156 S.W.3d 18, 25-26 (Tenn. Ct. App. 2004). When considering whether this ground for termination has been established, "Tennessee courts may consider the parent's behavior throughout the child's life, even when the child is in utero." In re Jai'Shaundria D.L.R., No. M2011-02484-COA-R3-PT, 2012 WL 224424, at *4 (Tenn. Ct. App. Jun. 15, 2012). As this Court has previously explained, "a parent's incarceration is merely 'a triggering mechanism that allows the court to take a closer look at the child's situation to determine whether the parental conduct that resulted in incarceration is part of a broader pattern of conduct that renders the parent unfit or poses a risk of substantial harm to the child.'" Id. (quoting In re Audrey S., 182 S.W.3d 838, 865 (Tenn. Ct. App. 2005)).

         As to this ground, the trial court made the following findings:

On or about the 31st day of October, 2014, [Father] pleaded guilty in three (3) separate felony cases to a total of seven (7) felony charges. While the first of these three (3) cases occurred prior to the Child's birth, two (2) cases encompassing six (6) different felony charges occurred during the Child's lifetime.
***
That the minor child was removed from the care of [Father] on or about the 7th day of June, 2014, and adjudicated dependent and neglected due to environmental and nutritional neglect.
That [Father] continued to engage in criminal activity, which resulted in his incarceration on or about the 29th day of September 2014, until ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.